Noble v. Bellows

53 Vt. 527 | Vt. | 1881

The opinion of the court was delivered by

Royce, J.

Upon the facts found by the auditor, the defendant claims that the plaintiff is not entitled to a judgment for any portion of the account which the auditor has found due from the defendant to the firm of Dewey & Noble, for the reason that by the contract executed by Dewey to the defendant on the 18th day of June, 1862, and accepted by the defendant, said account should be applied in payment of certain notes which the defendant then held against Dewey. The contract stipulated that Dewey was to do what law business the defendant might give him to do, charging him the usual rates, and was to deduct one half, the defendant paying clerk, court and officers’ fees. And the defendant was to employ Dewey in what law business he might have to be done in Franklin County except what he might do himself. The partnership between Dewey & Noble was not formed until some time in the month of November, 1862. The contract made no provision for the payment of what might become due to Dewey under it; and the first question presented by the report is upon the correctness of the ruling of the .auditor in receiving evidence aliunde the contract to show the agreement of the parties at the time the contract was executed, as to how Dewey was to be paid for. the services he might render under it. But we do not deem it necessary to pass upon that question. By the contract the defendant agreed to employ Dewey in what law business he had to be done in Franklin County, except what he might do himself; and conceding that the defendant under the contract was entitled to have the account of Dewey for such services apply on the notes he held against him, it was incumbent on the defendant to show a performance of the contract on his part, before he was entitled to have such application made, or the reduction made in the account which was provided for in the contract. The employment of Dewey as provided in the contract, .was a condition precedent to be performed by the defendant. The auditor has found that after March or April, 1865, and until the dissolution of the firm of Dewey & Noble, the greater part of the defendant’s law business was done by Edward A. Sowles, Esq., so that during said period Dewey was not employed in the law business of the defendant that was done by said Sowles. We think the facts found by the auditor as to the compensation paid Sowles by the defendant, does not vary or change his obligation to employ Dewey in said business. And the terms upon which Sowles did the business was a matter of indifference to Dewey. And probably one inducement which led Dewey to make what would seem to be an improvident contract as far as compensation for his services was concerned, was the obligation of the defendant to employ him in all his law business that he did not do himself. And when the defendant elected to employ another lawyer to do the business which, under the contract he should have employed Dewey to do, it was an abandonment of the contract on his part, and released Dewey from all obligation to have the pay for services that he might thereafter render, applied as they would have been if the defendant had kept and performed his part of the contract. Neither do we think that any notice to the defendant was required from Dewey. The defendant was chargeable with notice that in order to hold Dewey to the performance of the contract, it was necessary for him to show performance on his part. The account which the auditor has found due from the defendant, all accrued subsequent to the breach of the contract by the defendant, and the defendant knew that during all the time while said account was accruing Dewey & Noble were in partnership. Dewey & Noble, then, are entitled to a judgment for that portion of their account which accrued subsequent to April, 1866, unless some portion of their account is barred by the Statute of Limitations. The auditor has found that the items of their account from No. 58 to No. 66, accrued more than six years before the commencement of this suit; but they were for services rendered in two suits in which Dewey & Noble, or Dewey, were employed by the defendant; and that the suits were not fully terminated until within six years before the commencement of this suit. It is well settled in this State that an attorney’s employment in a suit is continuous; and the Statute of Limitations does not begin to run upon his charges therein until the suit is ended, or his employment otherwise terminated. Langdon v. Castleton, 30 Vt. 285; Davis v. Smith, 48 Vt. 52. The views above expressed render it unnecessary for us to pass upon the questions made in argument affecting the rights and liabilities of parties, resulting from contracts made by an individual partner either before or after the formation of the partnership; for the decision of this case is not dependent upon any such consideration.

The pro forma judgment of the County Court is reversed, and judgment on the report for the plaintiff for $227.58 and interest from the 20th day of September, 1875, and costs.